The statements made by Prime Minister of Ukraine Viktor Yanukovych during his visit to Brussels on 14th of September signified appearance of changes to the foreign policy of Ukraine under the new government. Now Kyiv is expected to clarify on numerous ideas and projects ranging from further NATO enlargement to Transnistrian conflict regulation, from SES creation to the projects concerning oil and gas transitions. However, today there is no answer to the question about the source of Kyiv’s official foreign policy. There is a crucial lack of mechanisms able to provide an effective dialog on positions of parties and groups as well as to facilitate the development of legitimate national consensus, which will be mandatory for execution by all official bodies in their foreign activities.
It is acknowledged that according to the Article 106 of the Ukrainian Constitution the President of Ukraine is in charge of the state foreign policy. But the same Constitution provides the Parliament (Verkhovna Rada) with the right to define fundamentals of foreign and domestic policies, which is important in the context of parliamentary majority formed with the Party of Regions including communists. Besides, the Prime Minister is the head of the executive power branch, including foreign affairs, that is formally administered by the President.
The incomplete, contradictory and based on compromise Constitutional reform adopted on December 8th 2004 does not clarify on performers and decision-making process in the field of foreign and defence policy which are mandatory for execution by all authority branches. The issue of joining NATO Membership Action Plan was the first to signalize about unbalanced system, as of today there are official positions of the President, Prime Minister, Minister of Foreign Affairs, Minister of Defence, Speaker of the Parliament but there is no position of Ukraine as a state, whereas any statement or decision may be refuted by a statement from another authority.
National Security and Defence Council (NCSD) could become an institution capable of approving decisions mandatory for execution by all authority institutes (CPCFPU is preparing a special analytical report on this subject) but it requires a certain political will and qualitative management.
The competition between the “camps” of the President and the Prime Minister who aspire to have real influence on foreign policy decision making of Ukraine is probable to be turned into a permanent conflict of interpretations of legislation, struggle for covering numerous legislation gaps and creating advantageous precedents. First to exemplify and indicate the coherent conflict escalation were seven signed and promulgated presidential decrees returned from the Secretariat of the Cabinet of Ministers to the President’s Secretariat without the PM’s signature. Several of these decrees, actually, directly pertained to the presidential constitutional powers in the field of foreign policy, in particular, regarding appointment and dismissal of Ukrainian Ambassadors abroad.
In order to analyse the current situation and perspectives of the foreign policy decisions making in Ukraine under the new political conditions, the current powers of main political actors and institutions must be examined.
ROLE OF THE PARLIAMENT
The Parliament of Ukraine (Verkhovna Rada) possesses the following instruments on the foreign policy of Ukraine:
1. Appointment of members of the Cabinet of Ministers of Ukraine, including appointment of the Minister of Foreign Affairs of Ukraine, according to the President’s submission
2. The right to define fundamentals of domestic and foreign policy of Ukraine
3. Approval of the state budget
4. Ratification of international treaties and agreements, approval of foreign troops access to Ukrainian territory, sending Ukrainian troops abroad.
Contradiction of the second paragraph arises from the problem of separating the fundamentals from the current foreign policy making. The history of Ukrainian parliamentarism resembles facts when the Parliament adopted decisions on the foreign policy formally referring to its right to define the fundamentals of domestic and foreign policy of Ukraine. Obviously, regarding the introduced constitutional reform and clear differences in some foreign policy positions between the President and the coalition such attempts are expected to continue.
Besides the abovementioned main influence instruments, the Parliament has a number of extra means to address the majority’s position on key interests of the coalition. For example, the Parliament may adopt resolutions which do not have direct legal consequences but may serve in order to legitimate certain positions of a ruling coalition for the general public as it happened with the famous Parliamentary Resolution on supporting the PM’s position on NATO.
The Parliament acts independently only to a certain extent. In most cases under the new constitutional conditions the parliamentary majority acts jointly with the government and practically performs orders of the governmental administration. In the case with the abovementioned comments on NATO the issue was not even discussed. As the initiators of the resolution admit, the MPs were not even familiar with the full content of Yanukoych’s speech for NATO-Ukraine Commission that was supported by their resolution.
The Parliament’s position on GUAM, whose status has not been ratified by the Parliament yet at the end of September, reflects on a “special opinion” of the Cabinet of Ministers and its administration on the organization and not only but mainly on the role of the President in forming the foreign policy.
INSTRUMENTS OF THE PRESIDENT
Numerous influential tools may be regarded as instruments and means at the President’s disposal in the field of foreign policy after introduction of the constitutional reform. The President has the following powers:
1. To administer the state foreign policy which is stated in Clause 3 of Article 106 of the Constitution of Ukraine
2. To nominate the candidates for positions of the Minister of Foreign Affairs and the Minister of Defence with further approval by the Parliament
3. To appoint Ukrainian Ambassadors abroad
4. To chair the National Security and Defence Council of Ukraine with the right to appoint and dismiss its Secretary and members except of those entering the NSDC in accordance with their positions.
5. To promulgate decisions adopted by NSDC as Presidential Decrees mandatory for execution by all bodies of executive power
6. To issue other Decrees for execution of the Constitution and Law of Ukraine
7. To introduce Law Drafts to the Parliament and to demand their urgent consideration in case of necessity.
8. To veto any Law adopted by the Parliament of Ukraine except changes to the Constitution
9. To suspend Acts of the Cabinet of Ministers with further address to the Constitutional Court on their accordance with the Constitution and the Ukrainian legislation.
10. To act on behalf of Ukraine on the international arena (the same right is held by the Prime Minister and the Minister of Foreign Affairs)
Besides the aforementioned general rights pertaining to approval and implementation of political decisions, the President also holds the following rights and competences: quota in appointment of members of the Constitutional Court and other courts, right to request staff of the NSDC and the President’s Secretariat to develop proposals both of tactical and strategic nature, decision making and control over their implementation.
Thus, regardless of the essential reduction of presidential authority in executive power institutions, the President still holds significant powers at its disposal, playing the important role in the legislative process (through the mechanisms of legislative initiative and the right to “veto”). The institute of President is competent to initiate and adopt political decisions which are mandatory for execution by all bodies of executive power through the NSDC (where is a possibility of having a stable pro-presidential majority). If the assigned Constitutional right to administer the state foreign policy is also taken into an account, the President obviously has all legitimate competences to remain the key institute in Ukrainian foreign policy formation and implementation.
Current chaos in organization and vagueness in the foreign policy of Ukraine are not mainly caused by to the Constitutional changes but are due to the President and his services failing to effectively use legitimate possibilities available. For example, the PM’s statements during his visit to Brussels revealing current disparity positions on NATO Membership Action Plan could be predicted in advanced by the President calling and holding a meeting of NSDC before the visit in order to discuss strategy and tactics of cooperation with NATO. The decision adopted at such NSDC meeting and then issued as the Presidential Decree would have been mandatory for execution by the Prime Minister of Ukraine. But this was not done.
INSTRUMENTS OF THE CABINET OF MINISTERS AND ITS HEAD
1. The Cabinet of Ministers of Ukraine ensures implementation of the foreign policy of Ukraine and the Ministry of Foreign Affairs is included into its structure
2. The Prime Minister is the Head of the executive power branch and ensures coordination of all central bodies of executive power, including the MFA.
3. The Cabinet of Ministers elaborates and introduces Law Drafts on the State Budget of Ukraine to the Parliament and ensures its implementation after its approval by Verkhovna Rada. The administration of the government may encourage or restrain certain policy directions including foreign.
4. The Cabinet of Ministers may adopt resolutions and other regulatory acts according to the Ukrainian legislation also regarding issues of the foreign policy.
5. The Prime Minister is entitled to act on behalf of Ukraine on the international arena (the same right is held by the President and the Minister of Foreign Affairs)
The Cabinet of Ministers was eligible to use the above-listed competences before the Constitutional reform took place. The reform itself has not formally widened the governmental authority in the foreign policy field. However, the general political presence of the Ukrainian government has already demonstrated itself in the foreign politics. The Prime Minister whose position is not tied to the President anymore being officially and actually the head of the executive branch is considered to be an independent political figure with the authority to act accordingly. His position as a rule is taken into account by the foreign partners. NATO’s serious relation towards Yanukovych’s statements on Ukraine’s reluctance to join NATO Membership Action Plan clearly exemplified the increase of PM’s role. Even without previous discussions on this issue during the governmental meeting, the Prime Minister actually managed to block the process of Ukraine’s official Euro-Atlantic aspirations regardless of the difference between the PM’s positions and the positions of the President and the Foreign Minister.
PRESIDENT AND PRIME MINISTER: COMPETITION HAS BEGUN
The aforementioned review of the formal powers does not clearly nominate the highest institution responsible for adopting foreign policy decisions in Ukraine, as well as the institution and procedure of approving final decisions and ensuring their implementation. It is obvious that the President has all legislative reasons to firmly fix his leadership in this field. Taking into account the competences foreseen by the legislation, the President could aspire for the actual role in the foreign policy that should not be any lower than the presidential position in the French model where the government fully recognizes president’s leadership in foreign policy. But in practice the president will have to get involved into a long positional fight with no guarantees for a success in order to preserve such role.
The intension of the Party of Regions leaders to take control over the foreign policy became clear right after formation of “anti crisis coalition” government. One of Yanukovych’s first orders on the PM’s position was appointment of Anatoliy Orel to the position of Advisor on the foreign policy. Mr. Olel is famous for his work in Kuchma’s Administration, pro-Russian views and boast of his experience in working for the Soviet special services. His colleagues know him for his achievements in creating parallel authority centres. During his service on the position of the Chief Advisor on the foreign policy to the President Kuchma, he managed to embody the process of making key decisions in the foreign policy ranging from strategy-making to staff appointment. As a result of his policy, MFA of Ukraine practically turned into the department of implementing Presidential Administration’s decisions. Obviously using his experience, Orel will attempt to set the similar system of adopting decisions now from his office on Hrushevskoho Street.
The government itself includes a group headed by Vice-Prime Minister Mykola Azarov (Minister of Economics Volodymyr Makukha may be regarded as his clientele) who is interested in having an influence on the Ukrainian foreign policy, particularly on the important elements, of time limits and conditions of accession to WTO, negotiations about SES with Russia, Belarus and Kazakhstan, etc. The main advantage of this group is possessing budget influence tools as Azarov performs the duties of Minister of Finance as well.
In order to control a decision-making process on the governmental level, the Party of Regions will be taking advantage of their majority and in such a way will neutralize votes, for example, votes of the Foreign Minister or votes of the Defence Minister by neutralizing other competent ministers. The decision on supporting Yanukovych’s position on the NUC meeting was adopted on the initiative of Minister of Transportation and Communication Rudkovkyi without listening to the competent ministers.
In order to weaken the influence of “Our Ukrainian“ (pro-presidential) component in the government, an important institutional decision was adopted during one of the first meetings of the new Cabinet. The Cabinet of Ministers has detruncated the number of governmental committees from seven to five. Particularly one of the two eliminated committees was the Committee on European and Euro-Atlantic Integration chaired by the Minister of Foreign Affairs. This Committee was coordinating the policy of the ministries responsible for implementing cooperation plans with EU and NATO. As the Chairman of this Committee, the Minister of Foreign Affairs possessed means for controlling and influencing considerable part of domestic policy within the components that are a part of the European and Euro-Atlantic integration processes. Now the newly established Committee on legal policy, defence and European integration will carry on this responsibility chaired by the Prime Minister Viktor Yanukovych. Such reorganization deprives the President’s team from having any influence on the adoption of governmental decisions through governmental committees, as all five committees are currently chaired by the representatives of the Party of Regions.
Representatives of the Party of Regions now openly use doubtful notion of “foreign policy of the ruling coalition” in their public statements. This notion could be acceptable if Ukraine was a parliamentary republic but it is dangerous with the current circumstances because the Constitution delegates functions of running the state foreign policy and its tools to the President.
The President, in his turn, tried to take advantage of his own competences by strengthening the foreign policy dimension of the President’s Secretariat with the appointment of Oleksandr Chaly to the Deputy Chairman of the Presidential Secretariat. Chaly is an energetic and creative manager and has a great experience in diplomatic services, legislative system and business. The priorities Chaly will focus on at the Secretariat are still not clear but presumably he will concentrate on strengthening the President’s position in the dialogue with the Cabinet’s administration. Chaly is a politically neutral figure. He is rather sociable, open and capable to get set appropriate physiological contact even with “demonic” Azarov and Orel.
On the other hand, Yushchenko’s expectations that Chaly will fulfil the President’s vision of the foreign policy can be questioned, as it is Chaly who is known for his constant EU and NATO scepticism. Chaly also promotes Ukraine’s out of block status and neutrality. Instead of improvement and consolidation, a new conflict line Tarasyuk-Chaly is very probable to occur in the President’s team that will continue to weaken the President’s authority regarding the foreign policy. The result of Chaly’s continuous insisting on neutrality and rejecting NATO membership will lead to a total confusion of the foreign partners in Ukraine’s official foreign policy.
From now on the Ministry of Foreign Affairs will have to deal with the new conditions that imply holding less authority within executive power system. Having eliminated the abovementioned Committee on European and Euro-Atlantic Integration the MFA’s control over the international commitments of Ukraine (Ukraine-NATO and Ukraine-EU Plans in particular) was essentially lessened. That might be dangerous of return of Kuchma’s system when the European integration was just a rhetoric notion and the element of diplomatic game not supported by real internal policy.
The attention of analysts has been already alerted during Viktor Yanukovych’s introduction of Borys Tarasyuk as a member of the new Government when a rather diplomatic discussion was triggered by the issue of accession to the WTO. During the introduction Yanukovych assumed that Ukraine should not rush with its intentions to enter the WTO by the end of 2006 while Tarasyuk insisted on this time-frame referring to the commitments of National Unity Pact. And it wasn’t the last time for this discussion to take place. The positions, as expected, also revealed the sharp differences on issues of joining NATO Membership Action Plan. On the 15th of September 2006 following the day of Yanukovych’s speech at NUC in Brussels the Minister of Foreign Affairs together with the Minister of Defence declared their disagreement with the PM’s position. The PM reacted during the next Governmental meeting regarding the actions of both Ministers as irrelevant.
The fact that the Minister of Foreign Affairs is appointed according to the Presidential quota allows doubting that Regionals would try launching the procedure of changing the Minister from the very beginning. More likely they will follow the mechanism which to a certain extent has already taken place and that is creation of parallel decision-making centres excluding MFA from this process, blocking MFA proposals at the meetings of the Government and actually detruncating the powers and funds for the foreign policy department.
Regardless of the fact that Ukrainian Constitution and Law assign sufficient legal instruments for leadership in forming and administrating foreign policy of Ukraine to the President, such leadership faces numerous difficulties. The structures controlled by the President failed to defend the presidential powers provided by the Constitution and resist the “cavalry attack” from the new Cabinet of Ministers and its administration. Speculation on different interpretation of Law and numerous legislation gaps has become a key tool in struggle for actual leadership in the state foreign policy. This competition demonstrated the Prime Minister’s team as more solid force while the President’s side showed a poor institutional performance in fighting against ambitions of the new Government. The government gained tactical victories on all key platforms so far. The brightest example to this is a failure of the President and his team to defend the state position on joining NATO Membership Action Plan. However, new political mechanisms to apply the constitutional reform have not been found yet that leaves the President with a chance to regain strategic initiative in the sectors where he possesses certain rights according with the Ukrainian Constitution and current legislation.
Among the steps necessary for organizing the decision-making and decision-implementation process in the foreign policy of Ukraine, the most urgent to be taken are, as follows:
1. Covering the legislation and procedural gaps through adaptation of Laws on the President and the Cabinet of Ministers
2. Intensifying institutional competence of the NSDC that would allow its effective coordination of political positions with further adoption of decision that are mandatory for execution by all bodies of executive power.
3. Regulating the procedures of political accountability on implementation of the decisions approved in legitimate order, in particular implementing decisions of the NSDC enforced by the President of Ukraine.